Absent Friends - Common Law Constitutionalism and the Northern Ireland Bill of Rights Debate

Abstract

The purpose of this article is to locate discussions around the need for a Bill of Rights for Northern Ireland within the context of a wider debate across the UK on the role of judges in curbing abuses of power. It will be argued that discourse on the protection of rights in Northern Ireland has been dominated in recent years by a Bill of Rights debate which has focused almost exclusively on how best to incorporate international human rights standards into domestic law via a strong and inclusive Bill of Rights. This approach, it is suggested, has in turn led to positive developments in the UK courts in recent years with regard to common law rights protection being largely overlooked by the Northern Ireland human rights community. As a result, the perception has been created that the only source of law currently available to those seeking redress for violations of rights is under the Human Rights Act 1998. This article seeks to highlight ways in which common law standards, including for example the “right to consultation” and the “right to confrontation” have delivered the goods in a number of cases in terms of curtailing the actions of the executive. The article will also focus on some recent comments from the Law Lords with respect to the doctrine of the sovereignty of Parliament. Such comments indicate a clear warning to politicians that there are indeed limits beyond which even an Act of the Westminster Parliament might be ruled “unlawful” by the courts. The point here is not to suggest that judicial law-making should be a substitute for a strong and inclusive Bill of Rights for Northern Ireland. Rather, the argument in this article is that those seeking to ensure the protection of rights should be familiar with, and be willing to deploy, all the tools at their disposal, including, where appropriate, the common law.